Rockstar Consortium US LP et al v. Google Inc
Filing
100
Opposed MOTION to Strike 97 Response in Opposition to Motion, for Leave to File a Supplemental Brief in Response to Google's Motion to Transfer, and, in the Alternative, Cross-Motion to Stay Case Pending Resolution of Google's Transfer Motion by NetStar Technologies LLC, Rockstar Consortium US LP. Responses due by 7/10/2014 (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Opposed Motion to Strike Dkt. No. 97, # 2 Affidavit of Amanda K. Bonn in Support of Plaintiffs' Opposed Motion to Strike Dkt. No. 97, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4)(Bonn, Amanda)
Exhibit 4
Case: 12-139
Document: 16-1
Page: 1
Filed: 10/19/2012
UNITED STATE COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
Miscellaneous Docket No. 139
IN RE FUSION-IO, INC.
Petitioners
On Petition for Writ of Mandamus to the United States District Court
for the Eastern District of Texas in Case No. 2:11-CV-00391-JRG
Judge Rodney Gilstrap
FUSION-IO, INC.’S REPLY IN SUPPORT OF
PETITION FOR MANDAMUS
BAKER BOTTS L.L.P.
Scott Partridge
(Principal Attorney)
Michael Hawes
One Shell Plaza
910 Louisiana
Houston, Texas 77002
713.229.1750
713.229.7750 (Facsimile)
ATTORNEYS FOR
PETITIONERS
FUSION-IO, INC.
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CERTIFICATE OF INTEREST
Counsel for the PETITIONER, Fusion-io, Inc. certifies:
1.
The full name of every party or amicus represented by me are:
Fusion-io, Inc.
2.
The names of the real parties in interest represented by me are:
Fusion-io, Inc.
3.
All parent corporations and any publicly held companies that own 10 percent
or more of the stock of the parties represented by me are:
[none]
4.
The names of all law firms, partners or associates that appeared for the
parties represented by me in the trial court or expected to appear in this
court:
Baker Botts L.L.P., Scott Partridge, Michael Hawes, Bradley Bowling,
Stephen Baehl
Siebman Burg Phillips & Smith LLP, Michael Charles Smith
Date: October 19, 2012
/s/ Scott Partridge
Scott Partridge
Counsel for Petitioners
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TABLE OF CONTENTS
CERTIFICATE OF INTEREST.......................................................................................................i
I.
INTRODUCTION ...................................................................................................................1
II.
DISCUSSION..........................................................................................................................5
A.
The District Court’s Failure to Consider the Relevant Factors is a Clear Abuse of
Discretion that Warrants Mandamus ...................................................................................5
B.
The District Court’s Attempt to Evade the Judicial Panel on Multidistrict Litigation
Further Warrants Mandamus ...............................................................................................7
C.
To Avoid Further Delay, the Federal Circuit Should Transfer the Severed Case to the
District of Utah ....................................................................................................................9
D.
S4’s Attempt to Divert Attention from the Facts Relevant to the Transfer Analysis is
Unpersuasive .....................................................................................................................11
1.
The vast majority of evidence is located in Salt Lake City. ..........................................11
2.
No parties have a valid connection to Marshall, Texas.................................................12
3.
S4’s improper joinder of unrelated defendants does not deprive them of their rights
under § 1404(a)..............................................................................................................14
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TABLE OF AUTHORITIES
CASES
PAGE(S)
In re EMC Corp.
677 F.3d 1351 (Fed. Cir. 2012) .......................................................................................7, 8, 15
In re Genentech, Inc.
566 F.3d 1338, 1345 (Fed. Cir. 2009) .....................................................................................11
In re Link_A_Media Devices Corp.
662 F.3d 1221, 1223 (Fed. Cir. 2011) .......................................................................................5
In re Microsoft Corp.
630 F.3d 1361, 1364-65 (Fed. Cir. 2010)................................................................................13
In re Nintendo
589 F.3d 1194, 1200 (Fed. Cir. 2009) .......................................................................................3
Norman IP Holdings, LLC v. Lexmark Int’l, Inc.
No. 6:11-CV-495, 2012 WL 3307942 (E.D. Tex. Aug. 10, 2012)....................................2, 4, 7
Odom v. Microsoft Corp.
596 F. Supp. 2d 995, 1001-02 (E.D. Tex. 2009) .....................................................................12
In re Volkswagen AG
(“Volkswagen I”), 371 F.3d 201 (5th Cir. 2004) .......................................................................5
In re VTech Commc’ns, Inc.
No. 909, 2010 WL 46332, at *2 (Fed. Cir. Jan. 6, 2010) ....................................................9, 10
STATUTES
28 U.S.C. § 1404(a) .........................................................................................................................5
28 U.S.C. § 1407 .............................................................................................................................5
LOCAL RULES
Eastern District of Texas Local Rule CV-7(e) ..............................................................................10
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I.
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INTRODUCTION
On September 7, 2011, Plaintiff Solid State Storage Solutions, Inc. (“S4”)
filed this patent infringement suit in the Eastern District of Texas against nine
unrelated defendants, each of whom develop their own distinct products in regions
of the country far from the venue that S4 picked merely for purposes of litigation.
On January 4, 2012—before Fusion-io even answered S4’s Original
Complaint and five months before the Court entered its docket control order—
Fusion-io filed a motion to sever the infringement allegations against its
proprietary memory devices and transfer that severed litigation to the District of
Utah, where Fusion-io’s corporate headquarters is located and where the vast
majority of the documents and witnesses can be found. At S4’s request, Fusion-io
provided discovery to S4 on the venue issue, and S4 filed its full response to the
motion on March 16, 2012. Contrary to S4’s incorrect assertion in its Opposition
Brief, Fusion-io’s motion has been ripe for decision since March of this year.
Faced with this Court’s clear holding in In re EMC Corp., 677 F.3d 1351
(Fed. Cir. 2012), the District Court finally issued an order granting severance on
September 17, 2012. However, the District Court immediately consolidated all of
the severed cases “as to all pretrial issues” and stated that it would determine later
“whether the cases will be tried jointly or separately,” suggesting that the
severance was entirely illusory. See Ex. 1 to Petition at 2.
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Without analyzing any of the required convenience factors pertaining to the
additional issue of transfer raised by Fusion-io’s motion, the District Court then
denied Fusion-io’s fully-briefed and pending request to transfer and suggested—
without providing any reason or explanation—that Fusion-io “re-file” the exact
same motion “should the movant determine that such is still appropriate after this
order.” Id. As stated in the Petition for Mandamus, nothing had changed that
would justify the need to re-file the exact same briefing, reopen and repeat the
exact same response process, and further delay transferring the litigation to a
clearly more convenient venue while the District Court opted to proceed with its
own schedule for an indeterminate period of time. Such a delay would only serve
to thwart the policies and purpose of § 1404(a) for at least that period of time.
The District Court’s decision to deny the motion to transfer and to delay
consideration of the convenience factors until a later time exemplifies a recent
trend in the Eastern District of Texas of circumventing transfer and taking upon
itself the role of the Judicial Panel on Multidistrict Litigation. The District Court’s
order here mirrors the approach recently adopted in the wake of the EMC decision
by another court in the district to explicitly delay consideration of the transfer
factors until after claim construction. See Norman IP Holdings, LLC v. Lexmark
Int’l, Inc., No. 6:11-CV-495, 2012 WL 3307942, at *4 (E.D. Tex. Aug. 10, 2012)
(holding that “in the event that transfer is appropriate, the Court shall retain the
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case through the Markman phase of the proceedings”) (Davis, J.).
Given that this additional delay would prejudice Fusion-io’s rights and
undermine the purpose of 28 U.S.C. § 1404(a), Fusion-io filed a Petition for
Mandamus with the Federal Circuit to correct the District Court’s clear abuse of
discretion. Additionally, although not required by this Court, Fusion-io moved the
District Court for reconsideration of the denial of transfer in an effort to give the
District Court an opportunity to correct its error and apply the appropriate analysis.
See In re Nintendo, 589 F.3d 1194, 1200 (Fed. Cir. 2009) (holding that the
petitioner was “not required to wait for the district court's decision on the motion
for reconsideration”). Tellingly, the District Court again declined to consider the
convenience factors. Ex. 7 at 2 (order denying the Motion for Reconsideration).
Faced with Fusion-io’s pending Petition for Mandamus, the District Court
instead used that opportunity to try to recast its clear denial of Fusion-io’s transfer
motion as “merely an administrative order for the Court to manage its docket
appropriately.” Id. The language of the order proves otherwise.
The District Court now suggests that its decision simply “ordered that each
Defendant file its then-pending motion to transfer venue in the newly-created
member case for each Defendant.” Id. However, that reinterpretation is directly
contradicted by the order denying transfer, which explicitly states that “[a]ll parties
are instructed to file any future filings in this, the first-filed case.” Ex. 1 to Petition
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at 2 (emphasis added). Indeed, the Court did not create member cases for the
purportedly severed actions until October 2, 2012—after Fusion-io filed its Petition
and after the District Court denied the Motion for Reconsideration. See Ex. 8.
Moreover, the order does not state that the parties should re-file for
“administrative” reasons, but rather that the parties should re-file “should the
movant determine that such is still appropriate after this order.” Id. (emphasis
added). The effect of the District Court’s order is clear: the motion to transfer was
denied, and in the event that Fusion-io believed that transfer was still appropriate,
the District Court would retain the case until a later stage. See, e.g., Norman IP
Holdings, 2012 WL at *4 (E.D. Tex. Aug. 10, 2012) (holding that “in the event
that transfer is appropriate, the Court shall retain the case through the Markman
phase”).
As the District Court is aware, the parties have already exchanged
proposed constructions, and the Markman hearing is scheduled for January 9,
2013. The denial of Fusion-io’s transfer motion on the eve of the Markman phase
prejudices Fusion-io by compelling it to litigate the merits of the case in an
inconvenient venue. Further delay would only compound this prejudice.
As stated in Fusion-io’s Petition, the District Court committed clear error by
immediately consolidating all of the severed actions indefinitely and then denying
the fully-briefed and pending motions to transfer.
The District Court’s
consolidation of the severed actions without any evaluation of the convenience
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factors thwarts the purposes of both 28 U.S.C. § 1404(a), which provides for
transfer to a clearly more convenient forum, and 28 U.S.C. § 1407, which
authorizes the Judicial Panel on Multidistrict Litigation to consolidate cases that
otherwise should be pending in different venues.
II.
DISCUSSION
A.
The District Court’s Failure to Consider the Relevant Factors is a
Clear Abuse of Discretion that Warrants Mandamus
Courts must consider eight factors when assessing a motion to transfer venue
under § 1404(a). Just as a failure to accord proper weight to various transfer
factors can lead to a “patently erroneous” result warranting mandamus, so too does
a failure even to consider the relevant transfer factors. Under the law of the Fifth
Circuit, in deciding the propriety of a district court’s ruling on a motion to transfer,
one question the appeals court must ask is: “Did the district court consider the
relevant factors incident to ruling upon a motion to transfer.” See, e.g., In re
Volkswagen AG (“Volkswagen I”), 371 F.3d 201, 203 (5th Cir. 2004). Other
Courts of Appeals similarly treat a district court’s failure to consider the transfer
factors as grounds for mandamus. See, e.g., In re Link_A_Media Devices Corp.,
662 F.3d 1221, 1223 (Fed. Cir. 2011) (noting that the Third Circuit’s standard for
mandamus requires “the petitioner to establish that the district court’s decision
amounted to a failure to meaningfully consider the merits of the transfer motion”).
S4 does not—and cannot—dispute that the District Court failed to consider
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the relevant transfer factors before denying Fusion-io’s motion to transfer. Instead,
S4 claims that the District Court’s explicit denial of the motion to transfer was
merely an “administrative, docket-management order” that fell within the Court’s
discretion. As stated above, the language of the court’s order proves otherwise.
For example, S4 contends that the order simply “request[ed] that the parties
re-file their motions to transfer under the new case number.” Opposition Brief at
13. However, the actual order states that “[a]ll parties are instructed to file any
future filings in this, the first-filed case.” Ex. 1 to Petition, at 2 (emphasis added).
S4 does not attempt to explain how denying a motion and then inviting a party to
re-file the exact same motion under the exact same case number furthers the goal
of effective docket management. Additionally, even if the parties were inclined to
violate the clear language of the court’s order and re-file their motions under a
different case number, this would have been impossible given that no new case
numbers were assigned until after Fusion-io filed the pending Petition and after the
District Court denied the Motion for Reconsideration. See Ex. 8.
Moreover, the District Court’s order expressly states that a party could refile the exact same motion “should the movant determine that such is still
appropriate after this order.” Id. (emphasis added). The only conclusion that can
be drawn from this statement is that the District Court, for reasons unexplained,
believed that its severance and immediate consolidation of the claims rendered
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transfer inappropriate at that time. This is substantially similar to the decision of
another court in the Eastern District of Texas to wait until after claim construction
before determining whether transfer was appropriate. Norman IP Holdings, 2012
WL at *4 (holding that “in the event that transfer is appropriate, the Court shall
retain the case through the Markman phase of the proceedings”).
As argued in the pending Petition for Mandamus, the District Court’s
decision to deny Fusion-io’s motion to transfer without considering the required
transfer factors is a clear abuse of discretion. The District Court and S4’s recent
attempts to recast that explicit denial as merely an “administrative order” is
directly contradicted by the clear language of the District Court’s decision and only
serves to further delay the transfer of the case to a clearly more convenient venue.
Because the District Court failed to consider the relevant factors incident to ruling
upon Fusion-io’s motion to transfer, mandamus is warranted.
B.
The District Court’s Attempt to Evade the Judicial Panel on
Multidistrict Litigation Further Warrants Mandamus
Mandamus is also warranted because the District Court has effectively
usurped the authority of the Judicial Panel on Multidistrict Litigation (JPML). As
recognized by this Court in EMC, § 1407 authorizes the JPML to assess
consolidation—including the proper venue for consolidation—when distinct suits
would otherwise be pending in multiple districts. EMC, 677 F.3d at 1360. The
District Court’s decision to consolidate the severed actions without evaluating the
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transfer motions thwarts § 1407 and undermines the holding in EMC.
Although a district court has discretion to consolidate cases, EMC makes
clear that a court has this discretion only “where venue is proper.” Id. This
presumes that the district court has already evaluated the merits of any motions to
transfer and has concluded that the proper venue under § 1404(a) for each severed
case is that judicial district. In contrast, when transfer under § 1404(a) is required,
the proper authority for assessing pre-trial consolidation is the JPML, as expressly
provided for by Congress in § 1407.
In an effort to circumvent EMC and the JPML, courts in the Eastern District
of Texas have chosen to consolidate cases that should be severed and delay
consideration of the convenience factors until a later stage in the case. This new
approach sets the plainly erroneous precedent that a plaintiff may force litigation to
proceed in an inconvenient venue simply by suing enough distinct defendants in
that venue and then, after the required severance under EMC, requesting the
district court to immediately consolidate those severed actions and delay ruling on
any motions to transfer until a later stage in the case. Such a precedent would
enable plaintiffs to nullify both the Fifth Circuit and this Court’s transfer decisions.
Accordingly, the District Court’s refusal to consider the relevant
convenience factors, combined with its decision to consolidate actions that were
properly severed under this Court’s holding in EMC, compounds the patently
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erroneous nature of the Court’s order and makes mandamus appropriate.
C.
To Avoid Further Delay, the Federal Circuit Should Transfer the
Severed Case to the District of Utah
In its Opposition Brief, S4 appears to concede that “mandamus may
sometimes be appropriate when a district court simply refuses to adjudicate a
pending motion.” Opposition Brief at 9. However, S4’s insistence that the Federal
Circuit should merely instruct the District Court to reconsider the transfer motion
overlooks both the prejudice that Fusion-io will suffer from further delay and the
fact that the District Court has already had two different opportunities to properly
evaluate the transfer factors, including an opportunity to reconsider its decision.
Under the District Court’s schedule, the Opening Claim Construction Brief
is due on November 19, 2012, and the claim construction hearing is set for January
9, 2013. As a result, any further delay in resolving the transfer issue will prejudice
Fusion-io’s rights and undermine the purpose of § 1404(a) by forcing Fusion-io to
litigate the merits of the case in an inconvenient venue. Additional delay in
transferring the case would also impede judicial economy by forcing the District
Court to spend valuable time familiarizing itself with the accused technology.
In light of the above concerns, Fusion-io has done everything in its power to
“actively and promptly pursue its motion to transfer venue before the district court
invested considerable time and attention on discovery and completing claim
construction.” See In re VTech Commc’ns, Inc., Misc. No. 909, 2010 WL 46332,
9
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at *2 (Fed. Cir. Jan. 6, 2010). S4’s new allegation that Fusion-io “delayed” filing
its motion to transfer is absurd and baseless. Despite filing its suit in September,
S4 did not serve process on Fusion-io until October 26, 2011. Ex. 9. Following
service, Fusion-io then moved to transfer a short time later on January 4, 2012—
two weeks before it even answered S4’s Original Complaint. Fusion-io further
pursued its motion by filing both a Motion for Reconsideration and a Petition for
Mandamus immediately after the District Court’s denial of transfer.
As a result of Fusion-io’s efforts, the Court has had ample time and
opportunity to consider the transfer factors.
S4’s unsupported claim that the
motion to transfer only became ripe for decision in July is false. After three
unopposed extensions, S4 filed its full response on March 16, 2012. Under the
District Court’s local rules, “the court will consider the submitted motion for
decision” after the opposing party files its response. See L.R. CV-7(e). S4’s focus
on the supplemental briefing filed in May ignores the fact that this supplemental
briefing primarily addressed the effect of this Court’s intervening EMC decision on
the severance issue. In contrast, the transfer factors were fully briefed in March.
S4 cannot legitimately dispute that Fusion-io has diligently sought a transfer
to a clearly more convenient venue, and S4 cannot legitimately dispute that the
District Court has had ample opportunity to consider the relevant transfer factors.
Given the upcoming schedule and the considerable delay already incurred in
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transferring this case, this Court should direct the District Court to transfer the case
to the clearly more convenient venue in the District of Utah.
D.
S4’s Attempt to Divert Attention from the Facts Relevant to the
Transfer Analysis is Unpersuasive
1.
The vast majority of evidence is located in Salt Lake City.
S4 does not contest the central facts relevant to transfer set out in Fusion-io’s
motion and the declaration of John Strasser, Fusion-io’s Vice President of
Hardware Development: Fusion-io designed and engineered its accused products at
its headquarters in Salt Lake City; it keeps documents related to those products’
design and configuration in Salt Lake City; and the most relevant witnesses—the
actual engineers responsible for designing the products—live and work in Salt
Lake City. See Petition at 16–18, Ex. 2A. To a lesser extent, additional employees
knowledgeable of Fusion-io’s marketing and financial activities are located at
Fusion-io’s offices in San Jose, California, and Superior, Colorado. Id. Both of
those offices are far closer to Salt Lake City than they are to Marshall, Texas.
S4 does not dispute that the bulk of the relevant documents and witnesses
are located in or near Salt Lake City. As both S4 and this Court recognize, “[i]n
patent infringement cases, the bulk of the relevant evidence usually comes from the
accused infringer.” In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009)
(holding that the convenience factors weigh in favor of transfer to the place where
the defendant’s documents are kept). Instead, S4 attempts to shift this Court’s
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focus to a small number of sales people who work out of their homes in different
parts of Texas. S4 does not explain why it believes those sales people are more
relevant witnesses than the engineers responsible for designing the accused
products or the managers actually responsible for sales strategy, marketing, and
financial decisions. S4 also does not explain why it believes that the sales people
based in Texas are more relevant witnesses than similar sales people based in Utah.
Moreover, with regard to sales information, Fusion-io’s Executive Vice President
of World Wide Sales, Jim Dawson, lives and works in San Jose, California, which
is much closer to Salt Lake City than it is to Marshall.
S4 argues that this Court should overlook Fusion-io’s substantial operations
in Salt Lake City because Fusion-io “focuses its briefing entirely on listing
activities that it conducts in Utah, as opposed to specific evidence located in Utah.”
See Opposition at 18. S4 misses the importance of Fusion-io’s business activities.
The vast majority of the relevant evidence is located in Utah precisely because the
vast majority of Fusion-io’s relevant business activities occur in Utah. Courts do
not require the specific identification of each witness and document supporting
transfer where, as here, the plaintiff “has not meaningfully attacked Defendant’s
assertion that most of the key witnesses” are located closer to the transferee forum.
See Odom v. Microsoft Corp., 596 F. Supp. 2d 995, 1001–02 (E.D. Tex. 2009).
2.
No parties have a valid connection to Marshall, Texas.
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S4’s attempt to avoid the substantial amount of evidence in Utah by pointing
to its recent move to Marshall is unpersuasive. As this Court has held, offices
established in anticipation of litigation in order to manipulate venue are irrelevant
to the transfer analysis. In re Microsoft Corp., 630 F.3d 1361, 1364–65 (Fed. Cir.
2010). S4 was founded in 2007 as a Wisconsin-based limited liability company.
In anticipation of this suit, S4 registered as a Texas corporation in October of 2009
and relocated its single-employee operation to Marshall. Its directors have no
connection to Texas and are instead based in California and Japan. Ex. 2B at 5–6.
Moreover, S4 is a non-practicing entity that produces no products and
currently employs only two people: Mr. Loudermilk and Ms. Haecker.1
See
Opposition Brief at 20. S4’s peculiar focus on the physical size of the building
where those two individuals work is irrelevant to the transfer inquiry. See id.
(noting that the entire building where S4 maintains office space is “25,000 square
foot”). S4’s small size and ephemeral presence in Marshall is insufficient to
outweigh the overwhelming volume of evidence located in Utah or the number of
Utah-based employees with unique and substantial knowledge of Fusion-io’s
accused products, sales, marketing, and finances.
S4’s attempt to portray Mr. Kato and Mr. Katayama—both residents of
S4 does not explain in its Opposition Brief how Ms. Haecker’s testimony is
relevant to the current litigation, and S4 has not disclosed Ms. Haecker as a person
having knowledge of any relevant facts.
1
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Japan—as disinterested witnesses is deliberately misleading and contradicted by
S4’s own Opposition Brief. S4 expressly states that a corporation called Renesas
is S4’s parent company,2 and both Mr. Kato and Mr. Katayama admit in their
declarations that they are employed by Renesas. See Opposition Brief at 22,
RA75, and RA78. S4 does not explain why the relative “convenience” of allowing
two Japan-based Renesas employees to testify in Texas should outweigh the far
greater convenience of allowing the many Utah-based Fusion-io employees to
testify in Utah. Finally, neither Mr. Kato nor Mr. Katayama have indicated that a
trial in Salt Lake City would be more inconvenient to them than a trial in Marshall.
3.
S4’s improper joinder of unrelated defendants does not
deprive them of their rights under § 1404(a).
S4 argues that this Court should not transfer the case against Fusion-io to
Utah because Mr. Kato and Mr. Katayama would prefer to testify in a single trial
in Texas. This argument incorrectly assumes that S4 properly joined the unrelated
defendants in a single action and that Marshall is a convenient venue for litigating
the case. Neither assumption is true. S4’s argument merely reemphasizes the
patently erroneous nature of the District Court’s response to the EMC decision.
As stated above, the District Court’s order sets the plainly erroneous
precedent that a plaintiff may force litigation to proceed in an inconvenient venue
S4 states that another corporation, SanDisk, is also a parent company. See
Opposition Brief at 22. As a result, it is irrelevant whether S4’s self-described
“parent companies” prefer that the litigation proceeds in the EDTX.
2
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simply by suing enough distinct defendants in that venue and then, after the
severance required under EMC, requesting the district court to immediately
consolidate those severed actions and delay ruling on any motions to transfer until
a later stage in the case. S4 essentially compounds this error by suggesting that a
plaintiff’s improper joinder of distinct defendants in an inconvenient venue should
inure to the plaintiff’s benefit by weighing against the transfer of the severed cases
to clearly more convenient venues. S4’s argument directly contradicts the logic of
EMC and Congress’s explicit grant of authority to the JPML.
This Court’s opinion in EMC makes clear that the District Court has
discretion to consolidate cases only “where venue is proper.” EMC, 677 F.3d at
1360. S4 should not be allowed to thwart both EMC and § 1404(a) by improperly
joining defendants in an inconvenient forum. Instead, the properly severed cases
should be transferred pursuant to the transfer motions. In the event that the severed
cases are transferred to different venues, Congress specifically created the
multidistrict litigation procedures to address how and where those transferred cases
should be consolidated. A district court in an inconvenient venue may not usurp
the role of the JPML and circumvent this Court’s decision in EMC by deciding to
consolidate and retain cases that have no connection to that judicial district.
For the above reasons, this Court should issue a Writ of Mandamus directing
the District Court to transfer S4’s claims against Fusion-io to the District of Utah.
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Respectfully submitted,
BAKER BOTTS L.L.P.
By: /s/ Scott Partridge
Scott Partridge
(Principal Attorney)
Michael Hawes
One Shell Plaza
910 Louisiana
Houston, Texas 77002
713.229.1750
713.229.7750 (Facsimile)
Attorneys for Petitioners
Fusion-io, Inc.
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CERTIFICATE OF SERVICE
I hereby certify that on the 19th day of October 2012, a true and accurate
copy of the foregoing was served through the Court’s ECF System:
Honorable Rodney Gilstrap
Sam B. Hall, Jr. Federal Bldg & U.S. Courthouse
100 East Houston Street
Marshall, TX 75670
David Sochia
McKool Smith
300 Crescent Court, Suite 1500
Dallas, TX 75201
Samuel Franklin Baxter
McKool Smith
104 East Houston St., Suite 300
Marshall, TX 75670
David M. Stein
Akin Gump Straus Hauer & Feld LLP
633 West Fifth Street, Suite 5000
Los Angeles, CA 90071
Brian K. Erickson
DLA Piper US LLP
401 Congress Ave, Suite 2500
Austin, TX 78701-3799
Maureen F. Browne
Covington & Burling
1201 Pennsylvania Ave, NW
Washington, DC 20004
17
(21 of 33)
Case: 12-139
Document: 16-1
Page: 22
Filed: 10/19/2012
Albert Berton Deaver, Jr.
Sutton McAughan Deaver PLLC
3 Riverway, Suite 900
Houston, TX 77056
Jonathan Short
McCarter & English
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102-4056
John V. Picone, III
Hopkins & Carley
P.O. Box 1469
70 S. First Street
San Jose, CA 95113
D. Scott Hemingway
Hemingway & Hansen LLP
1717 Main Street, Suite 2500
Dallas, TX 75201
/s/ Scott Partridge
Scott Partridge
18
(22 of 33)
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